Viewpoints on Life After Bilski v. Kappos

Introduction

Last week, the Supreme Court announced its much-anticipated and long-awaited decision in Bilski v. Kappos1, a case centered on the scope of patent-eligibility of process claims under 35 U.S.C. § 101. Not unexpectedly, the claims at issue were found by the Supreme Court to be ineligible for patent protection. And not unexpectedly, the Supreme Court held that the Federal Circuit was in error when the lower court adopted the machine-or-transformation test as the sole test for patent-eligibility of process claims under § 101.

Following our same-day and day-after coverage of the Bilski decision, Snippets offers this special issue to provide more on the decision itself, a reminder of how we got there, and a collection of view points from various authors, both current MBHB attorneys and one distinguished alumnus.

While reading this issue, please keep in mind that the viewpoints expressed are those of the authors themselves, and likely not their only viewpoints on Bilski. We hope readers appreciate these various viewpoints for their variety and for any insight they provide.

The Supreme Court’s Decision

As most know by now, the Supreme Court’s decision in Bilski came not as one opinion but as three: Justice Kennedy’s (partial) majority opinion, and Justice Stevens’ and Justice Breyer’s respective minority concurrences (combineable, though, into what has been deemed the “Anti-State-Street Majority,”2 seemingly ending the viability of the “useful, concrete and tangible result” test enunciated by the Federal Circuit in State Street3).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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